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Labour Law FeatureThe Edcon v Pillemer ruling in 2009, changed the way in which employer’s present evidence at CCMA Arbitrations. In terms of this judgment, a Commissioner could not simply assume that there had been a breakdown of an employment relationship, proper evidence had to be led by someone who had dealt with the employee in question on a daily basis, as to the status of the employment relationship.

In Easi Access Rental (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration 8 BLLR 783 (LC) further light was shed on that judgment which changed the stringent requirements in Edcon v Pillemer. An employee had been dismissed after being found guilty of five charges of misconduct, including gross dishonesty and gross negligence. The Commissioner ruled that the dismissal was unfair and awarded compensation, largely basing his award on the fact that no evidence had been led relating to the breakdown of the trust relationship, as required by Edcon v Pillemer.

This decision was then taken on review in the Labour Court, and the judge in the Easi Access case found that the Commissioner misinterpreted the Edcon judgment to mean that, if there is no direct evidence of the breakdown of the trust relationship, then the dismissal should be unfair. He found further that, in cases where direct evidence of the breakdown has not been led, the enquiry into the fairness of the dismissal by the Commissioner should include a determination of whether the breakdown cannot be inferred from the nature of the offence.

In support of this position, the judge referred to Department of Home Affairs and Another v Ndlovu, where the court held that the employer has an obligation to lead evidence to justify a dismissal, unless of course, the conclusion of a broken relationship is apparent from the nature of the offense and/or circumstances of the dismissal.

As can be seen, the courts have stated that even though no evidence is led as to the breakdown of the trust relationship, the commissioner still has a duty to determine whether or not same can be inferred from the circumstances in the matter.